Who’s On First?
Some parts of trial practice feel like they ought to be standardized, but simply aren’t. Instead, in virtually every courtroom there are procedural quirks that impact how a trial proceeds. Sometimes these differences are small and understandable but sometimes they’re large and bizarre.
For example, I tried a fraud case in Nassau County a few years ago where the judge refused to permit the jury to see any exhibits – even documents admitted into evidence – until deliberations began. So, while we could show the witnesses documents or photographs and ask questions about them, the jury couldn’t see anything or possibly follow what we were asking about. Thankfully we were able to shift gears a bit and prove the case primarily through testimony – the mind reels at how a jury in that situation would handle a complex commercial dispute that turned on contract language or the contents of dozens of emails.
One basic procedure that feels like it ought to be standardized is which party speaks first in closing arguments. But it just isn’t. While the plaintiff virtually always speaks first in opening statements – they did bring the case after all – you can experience every possible permutation of closing order without leaving the eastern seaboard. Most of them you can experience without even leaving New York City.
The strategic implications of closing order are not terribly deep. You want to be the last one to speak. There are both advantages and disadvantages to speaking first in opening, but once the ice is broken and the jury has sat through a trial, you want to have the last word. The person who speaks last has an opportunity to respond to the other side’s arguments and to make statements that go unanswered.
In New York state court the usual practice is that the defendant speaks first, followed by the plaintiff. [1] This is based upon the principle that the party with the burden of proof should have the last word on the matter. [2] In the unusual case where a defendant has the burden of proof – for example if a trial is limited to resolving an affirmative defense – the order is reversed. [3]
In New York federal court there is less uniformity. Most frequently, the plaintiff will speak first in closing, followed by the defendant. Then the plaintiff will speak again, so that they can have a short rebuttal to the defendant’s argument. This is also the practice in many arbitrations.
Whether this three-part ordering is better or worse for the plaintiff than the New York state court practice is an open question. On the one hand, the defendant has essentially no opportunity to respond to plaintiff’s closing in state court, meaning that there is a potential to bushwhack the defendant a bit with a truly novel presentation. On the other hand, the federal court plaintiff has the opportunity to speak to the jury both first and last, allowing them to both frame the issues and have the final word on them.
But while this is the most common arrangement, there is no rule that requires it. And we’ve had at least one federal judge direct that the plaintiff close first, followed by the defendant, with no rebuttal. The logic to this approach is somewhat unclear, but regardless of reasons, this is a strictly worse procedure for the plaintiff, who has to anticipate the defendant’s arguments and pre-empt them as best it can. In fact, you might think that that’s the worst possible rule for a plaintiff.
But wait! What about defendant first, then plaintiff, and then a defendant rebuttal? Surely nobody does that?
Wrong!
Under Rule 10 of the North Carolina Rule of Practice, “In all cases, civil and criminal, if no evidence is introduced by the defendant, the right to open and close the argument to the jury shall belong to him.”[4] This means that in North Carolina, most of the time the plaintiff goes first, then defendant, then plaintiff in rebuttal. But if a defendant affirmatively chooses to introduce absolutely no evidence at trial – like literally, not even a single piece of paper – then the defendant gets the right to speak first and last in closing. Where a defendant elects to go with this “shoot the moon” strategy, the courts follow a defendant, then plaintiff, then defendant rebuttal order of closing arguments.
Nor is this some dead-letter rule. North Carolina courts value a defendant’s “shoot the moon” right so highly, that appellate courts have held it reversible error not to permit this closing order when a defendant introduces no evidence. [5] And there are multiple appellate cases setting out what a defendant can do and while still retaining the right, for example whether a defendant can use a document for impeachment (not allowed), ask a witness to read a document out loud (not allowed) or use a document to refresh a witness’s recollection (permitted). [6]
So, what can we glean from all of this? First, you can’t deduce any of this stuff from first principles. No matter how obvious or bedrock an aspect of trial procedure might seem, there can easily be a venue where doing it backwards and upside down is considered a fundamental human right. There is no such thing as a procedure that’s too weird to be done somewhere.
Second, venue matters. You need to know where your case is going to be tried and ensure that you have access to local practitioners, even if they are not the ones actually trying the case. And as an attorney, you need to run your plans past those people because it may not be obvious where your “straightforward plan” runs aground on “how we do things down here.”
[1] CPLR § 4016(a) (“Before any evidence is offered, an attorney for each plaintiff having a separate right, and an attorney for each defendant having a separate right, may make an opening statement. At the close of all the evidence on the issues tried, an attorney for each such party may make a closing statement in inverse order to opening statements.”).
[2] See e.g. Kelly v. Nott, 284 A.D. 1023 (3d Dep’t 1954) (“The pleadings show that plaintiff was required to make proof of a default and that defendants had not paid the principal and interest due on the mortgages and he should not have been deprived of his right to open and close. Even though we could overlook that error, we would have to reverse and order a new trial.”).
[3] See e.g., Flaherty v. Wunsch, 28 N.Y.S.2d 178, 179 (N.Y. Sup. Monroe Co. 1941) (“The right to open and close belongs to the party who holds the affirmative on the issues in the case and the test of who has this important privilege is whether the party can prevail without giving any evidence. If he cannot so prevail and must offer some proof, he has the right to open and close.”) (permitting defendant to speak last).
[4] N.C. Super. Ct. & Dist. Ct. R. 10; see also NC Superior Court Judges' Benchbook, available at https://benchbook.sog.unc.edu/civil/closing-arguments-civil-trials.
[5] State v. Hall, 57 N.C. App. 561, 565 (1982) (“We hold it was reversible error to deprive the defendant of the last argument.”).
[6] See State v. Knight, 261 N.C. 17, 134 S.E.2d 101 (1964) (impeachment waives last word); State v. Macon, 346 N.C. 109, 114 (1997) (reading document into evidence waives right to last word); State v. Hall, 57 N.C. App. 561, 565 (1982) (refreshing recollection does not waive last word).
